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Freedom, Duties of Care, Principles, Constitutions, and Justice
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Constitutional Issues
Introduction
The document that follows is not intended to be an exhaustive, definitive treatment of the issues which it explores. Obviously, many of the topics with which this document deals are quite complex and far-ranging in scope. Moreover, there are many different perspectives one could choose as a means of engaging and examining such topics.
The present document is intended as a discussion paper which delineates a way of looking at various facets of the current Constitutional problems besetting Canada (the document was written around 1990 during the Constitutional debates which were being conducted in Canada). It offers a critical analysis of a number of the themes which I believe have played a fundamental role in creating and shaping the crisis facing Canadians.
The ensuing discussion also puts forth a variety of suggestions that, if implemented, might go a long way toward helping Canada resolve many of its constitutional problems. However, irrespective of whether any of the proposals contained in this document are realized in practice, I believe the document's critical perspective and proffered proposals should become part of the discussion process which surrounds and permeates the present constitutional crisis.
From a certain vantage point, the exploration that follows is not for the politically faint-hearted. Both the analysis and proposals put forth in the document are rigorous in nature, and, as such, neither of these two aspects leaves much to the reader's imagination concerning how I feel about various issues or where I stand on different matters.
As an interested observer and participant in the social /political fabric of Canadian life, I, to borrow the vernacular of sports, have tried to call things as I see them. I realize some of these judgement calls may well upset some segments of Canadian society.
The intention underlying such judgement calls is neither to insult nor to vilify any group. In fact, to continue with the analogy of sports, by citing apparent infractions concerning the spirit and substance of democratic principles, I, somewhat like a referee, am not making any moral judgements about the integrity of the people or groups to whom some of the remarks are addressed.
These remarks are directed at drawing attention to the inappropriateness of the behavior involved, according to our understanding and interpretation of the rules and character of the democratic game. As will be readily apparent at various points in our discussion, I believe some sorts of behavior to be far more inappropriate than other kinds of behavior.
Like a referee, I have a love for, and commitment to, the game in which I am involved, and also, like a referee, I want to see the game played well, cleanly and fairly. Everyone enjoys the game more when it is played under such conditions.
In addition, like a referee, I acknowledge the possibility that some of our calls may be shown to be, under the hindsight of instant-replay, questionable. Nonetheless, I believe we have a duty, as participants in the democratic game, to put forth our judgements to the best of our ability and let the chips fall where they may.
Indeed, in the foregoing sense, all Canadians are assuming the role of so many referees during this constitutional debate. In this regard, we all have a duty to call things as we see them, with the hope that, in doing so, the quality of the game will improve.
As a Canadian, I subscribe to the general idea of democracy. Furthermore, the present document is dedicated to putting forth a framework that is thoroughly consistent with democratic ideals and principles.
At the same time, the document has been written because I believe many of the political practices, institutions and processes which exist in Canada fall far short of the promise and potential that democratic theory has for meeting the social and political needs of a truly multi-cultural society. Consequently, the proposals advanced in the current document could be construed to be an exercise in democratic thinking that is intended to tap into, or unlock, more of the potential of democratic theory than we believe is taking place in Canada at the present time.
The present document is presented with the understanding that mere tinkering with the Canadian Constitution will not serve the best interests of Canada or Canadians. Radical reconstruction is necessary, but such reconstruction must be built upon a thoroughly democratic foundation.
Multi-culturalism cannot survive in an environment that pays only lip service to the underlying principles and values of that philosophy. The principles and values of multi-culturalism must be put into everyday practice.
The only way the philosophy of multi-culturalism can be translated into a lived reality is for people in Canada to come to terms with the different levels of meaning inherent in the idea of, on the one hand, unity in diversity, and, on the other hand, sovereignty. Both of these ideas are given expression in a variety of ways during the course of the present document.
A word of caution should be mentioned in relation to the idea of sovereignty. This cautionary note may prevent much misunderstanding during the discussion which follows.
More specifically, sovereignty is a structurally complex idea. Many people have different ideas about its character and scope. However, as used in the current document, it must always be understood to be a relative and not an absolute term.
Sovereignty might best be construed in terms of having a certain degree of control over, or autonomy in, one's life. Underwriting this control or autonomy is some form of direct, unmediated access to real power on some given level of scale.
The shape which sovereignty assumes in any given socio-political context must always be a function of the dialectic between the rights and duties of care of the participants in that context. Consequently, the sovereignty of one individual must be balanced against the sovereignty of other individuals.
Moreover, the sovereignty of one level of government must be harmonized with the sovereignty of other levels of government. The same holds true with respect to the sovereignty association of communities and various levels of government.
Therefore, nothing in the ensuing discussion of sovereignty or related ideas should be construed as advocating either some form of anarchy or the break-up of Canada. Canada must remain whole and united, and it can accomplish this, I suggest, through the combination of constraints and degrees of freedom permitted by the principles and proposals put forth in this document.
The appendix at the end of the main discussion provides a synopsis of the principles and proposals that have been introduced at different junctures during the discussion. In some cases, the appendix contains specific recommendations that were not discussed in the main text.
Whenever this occurs, which is not often, the recommendations have been added as concrete expressions of the principles at work in our perspective. As such, these extra suggestions are consistent with the spirit of the democratic framework being proposed in this document.
I have included this appendix in order to facilitate understanding for those people who would like to get an overall idea of the democratic framework being proposed without having to search through the various arguments that stand behind such proposals. Nonetheless, I strongly urge readers to study the entire document and not limit oneself to the appendix. I believe that a great deal will be missed and, therefore, misunderstood if one restricts one's interaction with this document to the appendix alone.
The Electrified Constitution
A number of years ago, Martin Seligman, a psychologist, performed a rather gruesome experiment. However, it is an experiment that may provide considerable insight into certain aspects of the constitutional problems with which Canada is confronted at the present time.
Consequently, despite the rather dark nature of the experiment, the general character of Seligman's work will be summarized below. Essentially, the experiment is quite simple in design. First, one constructs a small, two-room structure.
The rooms have an adjoining doorway between them which can be left closed or open. One of the two rooms has a floor of wire mesh which can be electrified at the whim of the investigator.
Next, one takes an animal with the right sort of intellectual capabilities- namely, not too much and not too little. A dog seems to have been the animal of choice.
The dog, then, is placed in the room with the wire mesh floor. In the interests of science, the doorway leading to the second room-the one without a wire mesh floor is closed so as to eliminate an unwanted variable such as the dog's being able to escape.
The third facet of the experiment calls for a constant, non-lethal, but quite painful electrical current to be administered through the wire mesh floor of the first room. Naturally enough, the dog objects to this sort of treatment.
However, the dog can do nothing about the situation except to howl in pain and run around the room trying to escape from the painful stimuli. Unfortunately for the dog, there is no escape. Everywhere the dog runs involves coming into contact with some aspect of the wire mesh floor.
Through the courage and dedication of the scientists involved in the experiment, the process is allowed to continue on unabated. Eventually, the dog retires to one or another of the four corners of the room, lies down and just continues to whimper in pain.
After some suitably lengthy period of time, this aspect of the experiment is brought to a close. The second stage of the proceedings discloses the raison d'ětre, such as it is, for the experiment as a whole.
In this facet of the experiment, the doorway to the second, "safe" room is opened, permitting an avenue of escape for the dog. At this point, dogs who were 'run' in the first part of the experiment are placed back in the room with the wire mesh floor.
Once again the floor is electrified. Once again, most of the dogs retire to a corner and just whimper in pain. There is no attempt on the part of the majority of dogs to make use of the open doorway to the unelectrified room.
In fact, even when the experimenters manually take the dogs through the doorway and show the animals that the second room is safe, nonetheless, when the dogs are placed back in the first, electrified room, most of them (roughly two-thirds of the dogs) simply return to their "favourite" corner and continue to whimper in pain. This pattern of behavior will persist (for two-thirds of the dogs) even after the experimenters have shown the dogs on scores of different occasions that there is an avenue of escape open to them'should they choose to avail themselves of it.
Martin Seligman referred to this phenomenon as "learned helplessness". Interestingly enough, the learned helplessness phenomenon has been shown to hold for human subjects who, like the dogs, were initially exposed to irritating stimuli (but not shocks) from which the human subjects could not escape in the first part of the experiment.
In the second part of the experiment, two-thirds of the human subjects, again like the experiments with dogs, will not even try to escape from the irritating stimuli, despite being given the opportunity to stop, or escape from, the unpleasant stimuli.
There seem to be a number of features of the above summarized experiment which may be applicable to the constitutional crisis which besets Canadians at the present time. In fact, this crisis really has been in existence since Confederation began, and the implications of the aforementioned experiment also have been present since the beginning of Confederation. The major difference between then, and now is that the people of today have had a lot longer to become shaped by the forces at work in learned helplessness.
The Canadian Constitution is like a complex, intricately woven, wire mesh floor with a potential to be electrified. Canada can be likened to a room which surrounds that wire mesh floor, and the people of Canada are analogous to the experimental 'subjects' that are introduced into the space enclosed by the room of nationhood. The Prime Minister, the legislators, the Premiers and the courts are akin to the experimenters who, according to their mood and whim, deem it proper and fitting to apply various kinds of shocks of varying voltage-some political in character, others economical, and still other species of voltage involving issues of morality, ideology, education, religion, ethnicity, race and/or gender.
For some time now, Canadians desperately have been seeking a second, safe room-a room free of the pain that has come, over the years, from the repeated shockings that have been administered by those in power. However, although the various species of shocks are administered by people of power, the shocks themselves have been made possible by the intricately woven character of the constitutional wire mesh which makes up the political and legal floor on which Canadians are forced to walk whether they like it or not.
Eventually, after being exposed to a situation from which there appears to be no escape, many people begin to exhibit some of the symptoms of learned helplessness. For example, a great many Canadians, apparently, have decided to lay down in their corner of choice and do nothing but whimper as they continue to be the victims of one set of shocks after another.
Juxtapositioning the phenomenon of learned helplessness next to the constitutional crisis tends to lead to two very important questions. (a) How much time will pass before the vast majority of Canadians begin to exhibit more and more characteristics of the above mentioned sort of learned helplessness due to constant exposure to an authoritarian rigidity and unresponsiveness of governments which insist that Canadians must go on suffering for the glory of democracy, as presently practiced, rather than be provided with one or more constitutional escape routes? (b) Even if some escape routes are found which lead to, relatively speaking, safe, or at least far less painful, circumstances, will the people of Canada be so far ensconced in the human version of learned helplessness that they would choose to continue to suffer in the wired room of the Constitution, as presently conceived, rather than seek relief in some alternatively structured room of constitutionality?
Representational Democracy
What would be required in order for Canada to be a participatory democracy? Some people might wish to argue that Canada already satisfies the requirements of a participatory democracy.
After all, voting is considered to be a fundamental expression of participation. Moreover, people are free to run for public office, or to help out in their riding association of choice, or to try to shape the policy platforms adopted by a political party. All of these count as acts of participation.
While conceding the point that there do exist a number of avenues through which Canadians can participate in the political process, nonetheless, the idea of a participatory democracy need not be limited to the foregoing sorts of possibilities. For example, once elections take place, the opportunities for most Canadians to continue participating in the political process often become severely curtailed.
This is the case because Canada operates according to the values of representational democracy. These values tend to place very determinate limits on the extent to which non-elected or non-governmental officials can participate in the political process.
There are, in general terms, two methods of putting into practice the concept of representational democracy. One approach construes the idea of representation to mean that the elected official must be faithful to the wishes, desires and interests of the electorate. Therefore, the elected official assumes the responsibility of actively seeking to convert such wishes, desires and interests into a governmental policy which is realized in various sorts of laws, social programs, economic measures, environmental activity and so on.
In taking on this sort of responsibility, the elected official acts as an agent for the electorate. As such, the elected individual's personal views concerning policy issues, social programs and legal standards are far less important than the wishes of the electorate. The elected official serves as a resource person for the electorate and tries to find potentially acceptable or feasible ways of implementing the desires of the electorate, as well as lobbying for, and negotiating on behalf of, the electorate's interests.
The other general approach to the notion of representational democracy, which might be labeled the "visionary model", holds a very different picture of the role of an elected official. From the perspective of the second approach, the elected official's primary responsibility is not necessarily to serve, or actualize, or be an agent for the wishes, desires and interests of the electorate. The task of the elected official is to seek to implement what such an individual believes is in the best interests of all of the electorate, even if these beliefs run, partially or entirely, contrary to the wishes, desires of the electorate.
Under such circumstances, campaign platforms become the blueprint or vision which drives the political activities of the elected official. Indeed, being elected is interpreted by people who adopt this "visionary" approach to representational democracy as a mandate from the electorate to pursue the various planks in the campaign platform during their tenure of office.
In practice, what occurs is a sort of mixture of the two aforementioned general approaches to representational democracy. Although one does find elected individuals who are purists with respect to one approach or the other, usually elected officials try to combine the roles of agent/resource person for the electorate with the role of political visionary.
In this way, some of the wishes, desires and interests of the electorate are realized precisely in the way for which the electorate, or some of them, have hoped. At the same time, the elected official also has pursued the realization or implementation of policies and programs which he/she believes to be in the interests of the electorate even if the latter do not share that belief.
Irrespective of which sort of approach to representational democracy one takes, there are problems. For example, the visionary perspective tends to be colored by some very questionable assumptions concerning the significance to be attached to the electorate's voting patterns. Very rarely, if ever, do members of the electorate as a whole vote for a particular individual in order to endorse the entire platform of the party for which the individual is standing as a candidate.
Some portions of the electorate, of course, are committed to a given party's platform, from beginning to end. However, even within the core members of a party, not all aspects of the platform are deemed to be equally important or fundamental.
Consequently, once in office, some planks of the platform may be more readily sacrificed than are other planks of the platform. In fact, elected representatives of the same party may be differentially committed to various facets of their party's platform and will seek to influence the political process accordingly, once they gain office.
Like most everything else in politics, the party platform constitutes a compromise amongst the competing factions of the party. Therefore, what occurs, once the members of a party get into power, will reflect the dialectic which transpires as different members seek to influence, orient, color and slant the position of the leader of the party. Indeed, the disaffection or alienation experienced by various factions of an elected party usually emerges as the actions of the leaders of that party go in directions that appear to marginalize the concerns, interests and wishes of such factions.
Aside from the foregoing issues, there are a wide variety of reasons why members of the electorate vote for a given individual which have little or nothing to do with a party's platform.These reasons range from: the charisma of the person vying for office, to the looks of the candidate, and from: which candidate has the slickest campaign machinery, to which candidate one dislikes the least.
Furthermore, during the course of office, issues have a way of emerging which were not anticipated by anyone. Elected officials with a visionary bent may take stands with respect to these problems. The stands they take may, or may not, be done in consultation with members of the electorate, but irrespective of which may be the case, there is no guarantee that the official's final position is going to reflect the beliefs, attitudes or feelings of the electorate.
The bottom line for the visionary approach to representative democracy is the belief that one has been elected for one's leadership qualities and one's ability to guide the country in a direction which is somehow "best" for everyone. What qualifies as being "best" is a function of the structural character of the vision held by this sort of individual.
This commitment to the bottom line remains firm even if one's leadership should involve decisions which are unpopular with those who vote for one. The visionary believes he or she has an obligation to impose these values onto society since such a person tends to believe this is the reason why people voted for that individual.
As such, they have reduced everyone's interests down to their own. They believe that their values/beliefs have more legitimacy and are more defensible than the values/beliefs of other people.
On the other hand, these people who advocate a 'give-the-people-what-they-want' approach to representative democracy are not without their problems. The reason for this is quite simple. One cannot possibly satisfy all of the wishes of all of the people all of the time.
Sometimes what people want is too costly. Or, the wants of some people may be exploitive or abusive of other people. Moreover, the wants of different groups of people may conflict with one another and, therefore, cannot be satisfied simultaneously.
Consequently, those who pursue the GTPWTW approach to representative democracy often end up serving the needs of only certain segments of the electorate. More often than not, the needs being served are the ones with which the individual's own likes and dislikes are most congruent. Therefore, those members of the electorate whose needs and interests do not fall within the sphere of interests of this sort of elected official will be marginalized, whether rightly or wrongly.
Both approaches to representative democracy have their strengths and weaknesses. Furthermore, both approaches permit participation of a limited nature.
Some people might wish to argue that the political opportunities provided by the foregoing alternatives represent the most that can be accomplished, or hoped for, within the context of a democratic society. However, there are those who would argue for a form of democracy that gives a much stronger emphasis to the idea of participation than does representational democracy in either of its two alternative forms.
Participatory Democracy and the Process of Recall
When people talk about the desire to have participation in the governing process, the discussion is often couched in terms of having a direct, active, unmediated contact with the governing process. Their desire is to have more autonomy over their political lives in the sense that they do not want their point of view to be marginalized, shunted aside or ignored by politicians.
They are seeking some way to have options open to them which offer the hope of circumventing, within limits, the traditional access to power-namely, the politician. In other words, the spirit of participation is rooted in the desire to have access to a form of real power which is beyond the control of politicians and which will make politicians more responsive to the needs of the electorate than does the prospect of holding elections every four or five years.
In short, the sort of participatory power being sought is that which enables one to make political choices that have substantive impact. Such power is not dependent on having to curry the favor of, or having to plead one's case to, politicians who may not really be interested in helping one and who even may have a vested interest in placing obstructions in the way of some of those who are seeking their assistance or trying to have a point of view taken seriously by such politicians.
There are a number of ways of providing the electorate with a sense of having the direct, substantive, unmediated participatory power which they seek. For instance, the power of recall is one such possibility. The mechanism of recall can assume several forms.
The first variety would be the right of a suitably sized group of the electorate of a given riding, region or province to force elected officials to answer their questions, criticisms and so on in a face-to-face interchange. Such a form of recall does not occur at the whim, convenience or mood of the elected official.
It is an obligation of office that must conform to the requirements of the electorate's convenience, mood and needs. If necessary, the elected official would have to undertake a series of such interchanges when the size of the recall group is not capable of being handled in one meeting.
A second form of recall would be the right of a suitably sized group of the electorate to remove an elected official from office prior to the expiry date of a person's term of office. Presumably, after being permitted to perform in office for some minimum length of time-such as one year-the electorate would have the right to take the appropriate procedural steps to: (a) remove the person from office, and (b) proceed with a by-election to replace the person who has been removed. The idea is to provide the electorate with a mechanism of access to power which is responsive without being unnecessarily intrusive and obstructionist in practice.
If a recall vote is taken but does not generate the requisite proportion of ballots against the elected official, that individual could not be subjected to another recall vote for one year. Furthermore, one might wish to argue for some sort of quorum conditions which require that a minimum number of the eligible voters must cast ballots in order for the vote to be considered valid in the event of a recall vote that goes against the elected official. This quorum condition may be different in the two kinds of recall votes outlined earlier.
If one liked, one could even establish some combination of the two forms of recall. For example, if the need should arise, after having served one year, an elected official could be subject to recall by the electorate in order to respond to the latter's dissatisfactions with the official's performance. If the question of a second recall action became necessary, the electorate would be entitled to seek the official's removal from office.
Referendum Issues
Another sort of power that would enable the electorate to have direct, substantive and unmediated access to the process of governing is linked with the idea of a referendum. There is almost nothing that is more conducive to a sense of helplessness than to see policies, programs or changes being instituted over which one has no control, despite feeling very much opposed to such activities of the government.
Many people would like to have an opportunity to counter some of the decisions made by government. The referendum does represent a mechanism that provides the electorate with a potentially powerful way to affect the governing process in a fundamental manner.
One does not have to propose a government by referendum in order to make use of this form of people power. Some sort of balance needs to be sought which, on the one hand, will permit those elected to govern, yet, which, simultaneously, places constraints on the sorts of liberties elected officials can take with the "mandate" they presume the electorate has given them. Moreover, in addition to providing the electorate with a meaningful, pro-active method of imposing constraints on the way in which they are governed, the process of referendum also provides the electorate with a substantial set of degrees of freedom that permit it to participate in the machinery of government and, thereby, invests political choice with real power.
Three arguments often are cited against the use of referenda. These arguments emphasize:(a) the expense of running a referendum; (b) the potentially complicated or unwieldy nature of a referendum; and (c) referenda subvert the parliamentary process. Let's explore each of these in turn.
The basic issues underlying the expense of running a referendum is not a function of cost, per se. The real problem focuses on, firstly, whether or not the cost can be justified by the advantages secured through such expenditure, and, secondly, even if the costs can be justified, whether or not one can afford those costs.
Perhaps the best way to address the aspect of justification is to ask the following question: putting aside all issues of cost, what possible reason could a democracy offer that would deny its people the entitlement to decide their fate in a direct, unmediated fashion, at least some of the time? Seemingly, any attempt to usurp the people's entitlement to request referenda from time to time would violate the very spirit to which democracies are supposed to be dedicated. In short, the desire to prevent people from having sufficient autonomy over their lives such that they are not afforded an avenue (i.e., referenda) to express their political will directly as citizens, rather than through political surrogates, is inimical to the democratic process.
Let's assume for the moment, therefore, that costs, whatever they may be, can be justified in light of the benefits which are obtained by citizens through the referendum mechanism. The question then, becomes: can we afford such costs?
Part of the answer to this question is clouded by our lack of knowledge about the frequency of the referendum event. A determinate answer to the foregoing question is also hard to establish because we don't know if the referendum would be a solitary affair or whether it would be run in conjunction with other events, such as elections, which would reduce costs relative to running a referendum on its own.
For the sake of argument, let's arbitrarily suppose that referenda are limited to a maximum of two per year for any given level of government. Let's further suppose that these referenda are unconnected with any other ongoing event such as an election.
There are a number of possibilities that come to mind with respect to the matter of underwriting the costs of a referendum. To begin with, costs could be cut considerably by requiring every citizen above a certain age to be required to volunteer time if called upon to help organize and operate a referendum.
Just as people are selected for jury duty, one could be selected for other forms of civic duty that are crucial to the health of a democracy. Democracy is not merely about rights of the individual. It is also about duties of care that the individual owes to society. In any event, once one has served such a duty on a given level of governmental activity, then, one would not be eligible to be called again for volunteer duty on that level for some specified period of time.
Secondly, people are prepared to make political contributions in order to promote and support political activities that serve their interests. The individual's interests are served in a fundamental way when one is provided with an opportunity to vote directly for, or against, issues that have the potential to affect one's life in a substantial way. Consequently, to contribute to a referendum fund would be a way of actively supporting, as well as participating in, a process that was not mediated or controlled by elected government officials.
Furthermore, such contributions would have the advantage of being committed to a very specific purpose with which the individual agreed. Said in another way, such contributions would not be ear-marked for uses about which the individual had no knowledge and with which the individual may or may not be in agreement.
Thirdly, the location of the referenda events could be held at public places such as schools; libraries, churches, temples, mosques and post offices. Therefore, there would not have to be any costs for renting sites at which the referenda are held.
Fourthly, presumably, one of the conditions of being granted a broadcast licence, whether radio or television, should be the willingness to make public service announce-ments. Therefore, such stations should donate a certain amount of air time to promote and publicize, in a non-partisan way, the occasion and issues of a referendum.
All of the above possibilities would reduce, if not entirely cut, the expense of running a referendum. However, if additional funds are needed, then, they would be paid out of public funds. People have a right to expect that their taxes will be used to pay for services that are in their direct interests and which permit the people to have some degree of control over the political process.
Another argument leveled against the idea of holding referenda is that such a process is unwieldy. In addition, the referenda process is said to have the potential for involving a complexity that is confusing to those who are voting in the referenda.
As far as the charge of being unwieldy is concerned, the charge seems, at best, very weak. The referendum process need be no more unwieldy than are elections. And, since elections have, by and large, proven to be quite manageable, one sees no reason why referenda wouldn't be run equally well.
Of course, someone may object at this point that elections may be less frequent than are referendums and, consequently, are inherently more manageable than referenda would be. One also might contend that referenda are more likely to be national events, whereas this is not the case for many elections. For the most part, elections tend to be limited to a provincial level of scale or less.
Let us briefly examine the different kinds of referenda proposed in this document [See Appendix, Section I, items (1)(a), (b) and (c)] and see whether the foregoing sort of objections are persuasive. In the ensuing discussion, we will be foreshadowing a few issues that will be explored at more length in the section on Senate Reform. Nonetheless, one does not have to have a complete understanding of the forthcoming issues in order to appreciate the points that will be made in the present discussion.
First of all, although referenda concerning, for example, war necessarily occur on a national level, they would tend to be very infrequent. Therefore, this kind of referendum should be less problematic than national elections, since the former probably will happen more infrequently than do elections.
Secondly, almost all recall referenda (with the exception of those involving the Prime Minister) would take place within a single riding. Because of the restricted level of scale of such referenda, they do not appear to pose any inherent problems above and beyond the usual difficulties surrounding the election process.
In addition, one cannot assume that if the electorate has the power to recall people, this power necessarily will be exercised in an indiscriminate fashion. In fact, one could make a strong case for the following possibility. Precisely because the electorate has such power and, once a year has passed since the date of election, can exercise the power at their discretion, they may be willing to give the elected official some latitude with respect to making mistakes. When one couples the above tendency toward forbearance under such circumstances with the conservative tendency in many electorates to maintain the status quo, the recall procedure does not appear to be likely to be excessive in its occurrence.
One also would have to factor in the perspective of the elected official in estimating the frequency of referenda relative to recall issues. If she or he realizes that the recall procedure is a real option of the electorate, then, presumably, the official will take steps to prevent the recall procedure being initiated. In short, the official will try to do a good job.
Finally, one must consider the problem posed by certain constitutional issues and ask if referenda in such circumstances would be inherently unwieldy. While all these sorts of referenda would be national in scope, one could argue, once again, that there might be a variety of pressures which would work to inhibit the proliferation of these events. In general, the possibility of referenda concerning constitutional issues takes place (as is discussed later in the document) when the Senate subcommittee on constitutional issues either: (a) initiates an amendment process with respect to the written form of the Constitution; or, (b) alters a decision of one of the constitutional forums; or, (c) refers conflicting decisions of different constitutional forums to the full Senate body for discussion and debate.
As far as (a) - the initiation of the amendment process - is concerned, there is considerable reluctance on the part of any nation to amend its constitutional process. The Constitution may get amended, but this will occur relatively infrequently.
Furthermore, with respect to (b) above, because the Senate subcommittee on constitutional issues knows that by altering a decision of a constitutional forum it will be setting in motion a process which will lead to a referendum, it will exercise considerable constraint therein. The subcommittee's tendency will be to let the judgements of the constitutional forums stand unless some fundamental principle or value has been undermined by those judgements.
Even in the case of (c) above-namely, different constitutional forums generating conflicting judgements-a great deal will depend on the character of that conflict. Ironically, some, but not all, conflicts serve the interests of society as a whole by permitting different people to pursue their interests in different ways.
This positive facet of conflict will be discussed, in slightly more detail, in the section on Diversity of Equality: A Principle. For the present, however, one can say that the Senate subcommittee on constitutional issues often will be inclined to permit a certain degree of flexibility in the judgements of different constitutional forums.
The subcommittee will be moved to act only when the problem of conflicting judgements goes beyond some boundary of permissibility. The character of this boundary point will vary with circumstances and the issues involved. Consequently, here too, there will be pressure to prevent the proliferation of cases which are to be decided by referendum.
To be sure, there will be cases that will lead to referenda being held. Yet, at this point, there is nothing to suggest that such a process necessarily should be excessively frequent or should be inherently more unwieldy than the election process. In addition, whatever extra effort will be required by the electorate and the government in order to look after the responsibilities of referenda will be more than compensated for by the opportunity such a process gives the people to participate in the political process and, thereby, to gain a measure of autonomy over their lives.
The previously mentioned criticism that referenda run the risk of confusing or confounding the electorate seems to be somewhat condescending toward the electorate. First of all, the task of explaining the various issues associated with a referenda is one of the tasks of the elected officials.
If these officials can't accomplish this task, then, maybe the problem rests, not with the electorate, but with the officials or with the lack of clarity of the issue being subjected to a referendum. Either the government has a clear idea of what it proposes to do, or it doesn't. If the government is clear-sighted in its view, then, it should be able to communicate the essence of this to the people.
Secondly, the wording of the referendum should not be a major concern. One does not have to put forth all the ins and outs of the issue on the referendum sheet.
In fact, these issues should be spelled out ahead of time. The purpose of a referendum is to seek a yes or a no vote which is in support of, or in rejection of, a given proposition, piece of legislation or government policy considered as a whole.
A referendum is intended to provide a means of voting for or against the operative principle which is at the heart of a given issue, irrespective of the riders which may qualify that issue in various, nuanced ways. If one votes in support of an issue, then, one is giving the government authority to pursue that issue, as well as permitting it some degree of flexibility as to the specific wording of the text which gives operative expression to that issue. On the other hand, if one votes against an issue, then, one is telling the government that no matter how one tinkers with the wording of the issue, one is opposed in principle to the basic philosophy inherent in the issue.
The final argument which is raised, on occasion, against the idea of a referendum process centers around the charge that referenda subvert the parliamentary process. This is exactly right, and that is what it is intended to do.
What referenda do not do is subvert ,the democratic process and, unfortunately, this cannot always be said of the parliamentary process. Those who would equate, in rigid fashion, the parliamentary process with democracy have an extremely narrow understanding of the latter.
Moreover, such individuals entirely fail to grasp that people have a need for access to real power that falls beyond the capacity of politicians to subvert or usurp for the latter's own purposes and irrespective of whether those purposes are legitimate or not.
To try to argue that giving power to the people is wrong since it permits them, within certain prescribed limits, to serve their own interests directly and, thereby, gain autonomy, of a sort, over their lives, seems a rather ludicrous argument. Indeed, to try to prevent people from having access to, as well as exercising, such power, seems to fly in the face of what democracies supposedly entail. One has to wonder about the motivation of anyone who would wish to close off this sort of possibility entirely.
Question of When?
There is at least one outstanding issue which still needs to be addressed. This issue concerns both the processes of recall as well as that of a referendum. More specifically, one might like to know how to determine when a recall or a referendum is in order.
One obvious suggestion is to make use of the opinion poll expertise that exists in the community. While opinion polls are vulnerable to various kinds of difficulties which can skew the statistics in different directions, nevertheless, polling is rooted in a whole arsenal of statistical techniques and sampling procedures which have been studied thoroughly for a number of years by a large number of professional mathematicians, statisticians, political scientists, sociologists, and psychologists.
These years of effort have sensitized investigators and practitioners to the kinds of biases, methods and tools that have the potential for contaminating or distorting the results of an opinion poll. Consequently, when the appropriate protective measures are taken, polls are capable of generating results that, when properly analyzed and presented, are fairly accurate in the way they reflect the character of people's opinions about specific issues.
Thus, if one wishes to probe the mood of the electorate in a riding, municipality, province, region or the country as a whole with respect to, say, the issue of recalling a particular elected official, a poll could be conducted which would provide insight into the electorate's thinking on the matter. The same process could be invoked in relation to the question of holding a referendum.
If one were to assume, for the moment, that the issue of the desirability of using polls as the means of choice of taking the political pulse of the community has been settled, two problems remain. The first problem revolves around the question of who is to do the polling, analysis and so on. The second problem concerns the costs of such an undertaking.
This latter facet is not a small consideration if one keeps in mind that recall and referenda issues could be raised at every level of government, from home ridings to the federal context. Moreover, there may be an ongoing need to probe the mood of the electorate on a fairly regular basis. Therefore, the expense of running a number of polls over the course of a year would be fairly substantial.
One possible way of defraying such costs is to entice the universities and colleges in the community to be good corporate neighbors and provide the necessary expertise in polling as a public service. By offering this sort of service, the educational institutions could return something of value directly to the community-especially to those people who may have little or no contact with these institutions and, yet, who are helping to support the universities and colleges through their tax dollars. On the other hand, those professionals who donate their time to providing such a service could use the activity to help fulfil some of their own needs within the university or college as a kind of employment credit that would be weighed along with the research, teaching and administrative duties which are used in determining promotions, tenure and pay increases.
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Copyright © 2004 Interrogative Imperative Institute. All Rights Reserved.
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